Judicial Branch Governance:

Is there something to govern?

Abstract

The issue of “judicial governance” is currently being debated within our legal community; this issue is inextricably linked to the political-legal perspective held regarding the judicial function. This involves considerations of political theory that go beyond the mere ‘management’ or “efficiency” of the judicial system. In our view, the major task still pending in Chile in this area centers on the need to overcome the current hierarchical and bureaucratic system in which the corporate governance functions of the judicial service and jurisdictional powers are concentrated at the apex of the organization—that is, in the Supreme Court and the Courts of Appeals. This assertion rests on the central premise that a democratic state governed by the rule of law must have institutional arrangements that ensure the exercise of jurisdiction in accordance with the republican ethos: independent judges with no ties other than their subjection to the law applicable to the case. Anything that interferes with the judge’s binding to the law—such as hierarchical control exercised by other judges beyond the functional rules of jurisdiction, rewards and punishments, expectations of promotion, or external pressures—weakens their independence and, with it, the rule of law.